Sekt

Following the conviction and sentence of A. A. Sekt in the Justice's Court of San Rafael, he filed a written notice of appeal. Upon motion, the superior court dismissed the appeal upon the ground that it had not been perfected within the time required by the rules of the Judicial Council. The question for decision, presented by the petition of Sekt for a writ of mandate requiring the superior court to hear and determine the appeal, concerns the authority of that court to make the challenged order.

The petitioner filed his notice of appeal on March 30th. On the same day he was granted until April 19th within which to prepare and file a statement and the transcript on appeal. The twenty days fixed by this order is the maximum time which may be allowed by the justice's court for the preparation of the record upon appeal. (Rules of the Judicial Council in the matter of Criminal Appeals to the Superior Court from Inferior Courts; rules 4 and 6.) On April 24th, five days late, the petitioner filed his statement upon appeal specifying the ground, among others, that the evidence is insufficient to support either the verdict or the judgment. The statement declares that the…

Following the conviction and sentence of A. A. Sekt in the Justice’s Court of San Rafael, he filed a *74 written, notice of appeal. Upon motion, the superior court dismissed the appeal upon the ground that it had not been perfected within the time required by the rules of the Judicial Council. The question for decision, presented by the petition of Sekt for a writ of mandate requiring the superior court to hear and determine the appeal, concerns the authority of that court to make the challenged order.

The petitioner filed his notice of appeal on March 30th. On the same day he was granted until April 19th within which to prepare and file a statement and the transcript on appeal. The twenty days fixed by this order is the maximum time which may be allowed by the justice’s court for the preparation of the record upon appeal. (Rules of the Judicial Council in the matter of Criminal Appeals to the Superior Court from Inferior Courts; rules 4 and 6.) On April 24th, five days late, the petitioner filed his statement upon appeal specifying the ground, among others, that the evidence is insufficient to support either the verdict or the judgment. The statement declares that the…

I concur. The essential jurisdictional step in taking an appeal to the superior court is the filing of a notice of appeal within the time limited (rule 2, Criminal Appeals to the Superior Court * ) but the record shall not be transmitted to the superior court unless and until it is settled as provided by the rules (rules 3 and 8, Criminal Appeals to the Superior Court * ). The filing of the notice of appeal with the trial court within the time prescribed is jurisdictional and, even though the notice of appeal is filed in time, the appellant may lose his right to have the record transmitted to the higher court, but until the record is transmitted, the superior court ordinarily will be in no position to entertain and pass upon a motion to dismiss. There is no absolute time limit fixed for the perfecting and settlement of the record (rule 7, Criminal Appeals to the Superior Court*) and upon the showing before us it does not appear that the superior court had authority to dismiss the appeal; the trial court had denied the respondent’s motion to terminate the proceedings therein and that order is not subject to review in this proceeding. For a further discussion of the rules in…

I dissent. I subscribe to the view' that appeals should, if possible, be heard on the merits, and that a dismissal for procedural default should only be ordered where the appellant is clearly at fault. If a motion to dismiss an appeal were made in this court under circumstances similar to those shown- by the record herein, denial of the motion would be reasonable, despite the fact that much of the delay was caused by appellant’s own neglect in failing to commence proceedings promptly, and to his subsequently delivering bad checks to the reporter as advances on his fees. That this is a criminal appeal, that eventually appellant paid the *79 reporter’s fees, and that subsequent delays in settlement and certification of the record were not within his power to avoid, would ordinarily be persuasive reasons for leniency in ruling on the motion.

These considerations, however, are not before us. The motion to dismiss was not addressed to this court, and we are not deciding it. The motion was addressed to the superior court, in which the appeal was pending, and was granted by that court. We have recently pointed out that “the jurisdiction of the superior court upon an appeal from a…